Consideration of Privileged Nominations in the Senate

March 16, 2020
R46273

Privileged nominations are a subset of presidentially appointed and Senate-confirmed positions that are eligible for consideration under procedures established by S.Res. 116 (112th Congress, 2011-2012). The vast majority of the 285 nominations designated as privileged are part-time positions to various boards and commissions, though some full-time positions are privileged as well (e.g., chief financial officers and certain assistant secretaries in Cabinet-level agencies). The procedures for privileged nominations may reduce the workload of committees of jurisdiction in processing these appointments for consideration by the Senate.

The creation of privileged nominations and the special procedures for their consideration were part of a larger effort at reforming the confirmation process in the Senate during the 112th Congress. At the outset of the 112th Congress, a bipartisan working group was formed and ultimately produced both S.Res. 116, “A resolution to provide for expedited Senate consideration of certain nominations subject to advice and consent,” and S. 679, the “Presidential Appointment Efficiency and Streamlining Act of 2011” (P.L. 112-166). The list of privileged nominations, first established in 2012, was expanded in 2015 by P.L. 114-1, the Terrorism Risk Insurance Program Reauthorization Act of 2015, to include 13 members of the Board of Directors for the National Association of Registered Agents and Brokers.

Unlike a typical nomination, a privileged nomination is not referred to committee unless requested by any Senator. Instead, it is entered into the “Privileged Nominations” section of the Senate Executive Calendar. Committees are required to request biographical and financial information from these nominees, typically in the form of committee questionnaires. Upon receipt of the requested information, the committee chair notifies the Executive Clerk in writing. The nomination then remains in the “Privileged Nominations” section of the Executive Calendar for 10 days of session before moving to the “Nominations” section, where it is eligible to be brought up for consideration on the floor of the Senate. This process allows a nomination to become eligible for floor consideration even though the committee did not hold a formal markup meeting to vote to report it. There are no expedited floor procedures for privileged nominations, and they are brought up and considered under the same procedures as any nomination reported by a committee.

Any Senator may request on his or her own behalf, or on behalf of any identified Senator, that a privileged nomination be referred to committee. Such a request automatically triggers the referral of a privileged nomination. If a nomination is referred in this way, it must be reported by the committee (or the Senate must discharge the committee of the nomination) before the full Senate can consider it. The vast majority of privileged nominations considered on the Senate floor were not subject to a request for referral to committee. As of the end of 2019, the Senate has considered 467 privileged nominations, and there have been 22 instances of privileged nominations being referred to a committee at the request of a Senator. Such requests for referral are usually initiated by a Member on the committee with jurisdiction over the nomination and oftentimes originate with the committee’s chair or ranking member.

Tables

Appendixes

Summary

Privileged nominations are a subset of presidentially appointed and Senate-confirmed positions that are eligible for consideration under procedures established by S.Res. 116 (112th Congress, 2011-2012). The vast majority of the 285 nominations designated as privileged are part-time positions to various boards and commissions, though some full-time positions are privileged as well (e.g., chief financial officers and certain assistant secretaries in Cabinet-level agencies). The procedures for privileged nominations may reduce the workload of committees of jurisdiction in processing these appointments for consideration by the Senate.

The creation of privileged nominations and the special procedures for their consideration were part of a larger effort at reforming the confirmation process in the Senate during the 112th Congress. At the outset of the 112th Congress, a bipartisan working group was formed and ultimately produced both S.Res. 116, "A resolution to provide for expedited Senate consideration of certain nominations subject to advice and consent," and S. 679, the "Presidential Appointment Efficiency and Streamlining Act of 2011" (P.L. 112-166). The list of privileged nominations, first established in 2012, was expanded in 2015 by P.L. 114-1, the Terrorism Risk Insurance Program Reauthorization Act of 2015, to include 13 members of the Board of Directors for the National Association of Registered Agents and Brokers.

Unlike a typical nomination, a privileged nomination is not referred to committee unless requested by any Senator. Instead, it is entered into the "Privileged Nominations" section of the Senate Executive Calendar. Committees are required to request biographical and financial information from these nominees, typically in the form of committee questionnaires. Upon receipt of the requested information, the committee chair notifies the Executive Clerk in writing. The nomination then remains in the "Privileged Nominations" section of the Executive Calendar for 10 days of session before moving to the "Nominations" section, where it is eligible to be brought up for consideration on the floor of the Senate. This process allows a nomination to become eligible for floor consideration even though the committee did not hold a formal markup meeting to vote to report it. There are no expedited floor procedures for privileged nominations, and they are brought up and considered under the same procedures as any nomination reported by a committee.

Any Senator may request on his or her own behalf, or on behalf of any identified Senator, that a privileged nomination be referred to committee. Such a request automatically triggers the referral of a privileged nomination. If a nomination is referred in this way, it must be reported by the committee (or the Senate must discharge the committee of the nomination) before the full Senate can consider it. The vast majority of privileged nominations considered on the Senate floor were not subject to a request for referral to committee. As of the end of 2019, the Senate has considered 467 privileged nominations, and there have been 22 instances of privileged nominations being referred to a committee at the request of a Senator. Such requests for referral are usually initiated by a Member on the committee with jurisdiction over the nomination and oftentimes originate with the committee's chair or ranking member.

"Privileged" Nominations

Every year the Senate routinely considers whether to give its advice and consent to hundreds of nominations submitted by the President. From start to finish, the confirmation process can be a lengthy one, even for relatively noncontroversial nominees. Each nomination is typically referred to one or more committees having subject matter jurisdiction over the position. Committees may bear a significant workload in examining nominees—often including questionnaires, optional public hearings, and individual meetings with Senators—to determine whether to report a nomination to the full Senate.1 Once a committee has reported a nomination or been discharged from its further consideration, the Senate may take up a nomination for deliberation, though a cloture process may be required to ensure a final vote to confirm.2

As part of an effort to streamline the nominations process during the 112th Congress (2011-2012), a standing order of the Senate, S.Res. 116, created a new designation of certain nominations as "privileged." These so-called privileged nominations are subject to special procedures that may save the time of committees in processing these appointments. In total, there are 285 positions to which nominations are privileged, the majority of which are part-time appointments to oversight boards and advisory commissions, but they also include full-time chief financial officers and certain assistant secretaries to cabinet-level agencies. A full list of privileged nominations, organized by their committees of jurisdiction, can be found in Appendix.

This report first examines, in detail, the special procedures under which privileged nominations are processed, as well as the action by which a Senator may have a privileged nomination referred to its committee of jurisdiction. It then provides a brief legislative history of S.Res. 116 and subsequent legislation that has created additional privileged nominations. Finally, this report includes data on and a discussion of Senators' requests to refer privileged nominations to committee. Figure A-1 contains an example of the "Privileged Nominations" section of the Senate's Executive Calendar.

Consideration of Privileged Nominations

The sections below discuss each step of how a privileged nomination might be processed under potentially expedited procedures before consideration by the full Senate. Pursuant to Section 1(d) of S.Res. 116, any Senator may insist that a privileged nomination be referred to its committee of jurisdiction, making it no longer eligible for procedures under S.Res. 116. Further discussion of when and why a Senator might make such a request follows after the sections on consideration.

Receipt in Senate

Unlike a typical nomination—which, when received by the Senate, is usually referred to its committee of jurisdiction—a privileged nomination goes directly to the "Privileged Nominations" section of the Executive Calendar. There, the nominee and position to which he or she was nominated is to be recorded, along with the date the nomination was received by the Senate. An example page of the "Privileged Nominations" section of the Executive Calendar appears in Figure A-1.

The same day a privileged nomination is received in the Senate, the Office of the Executive Clerk sends a notification form to its committee of jurisdiction. This transmittal from the Executive Clerk is not a referral of the nomination to the committee but rather serves to inform the committee it should proceed to request information from the nominee. A column in the Privileged Nominations section of the Executive Calendar entitled "Information Requested by Committee" is marked with a "Yes" to denote this transaction.

Information Requested and Received by Committee

Though under the terms of S.Res. 116, privileged nominations are not referred to their committees of jurisdiction, these committees are still responsible for obtaining certain background information from nominees before they can be considered by the full Senate. Section 1(b) of S.Res. 116 directs that the "appropriate biographical and financial questionnaires" be collected by committees of jurisdiction from privileged nominees. This broad requirement gives committees some discretion in determining what information to collect. As a result, committee practices on obtaining information from privileged nominees can vary.3

Once a nominee has responded to a committee's questionnaires, the chair is required to notify the Executive Clerk in writing that the appropriate information has been received. This requirement is fulfilled, in practice, when the committee returns the notification form to the Executive Clerk's office.

When a committee has affirmed receipt of the requested information from a nominee, that date is recorded under the "Requested Information Received" column in the Privileged Nominations section of the Executive Calendar. Senators have 10 session days from this date (and any time prior to this point, starting from the day the nomination was received in the Senate) to request that the nomination be referred to its committee of jurisdiction.4 After 10 session days have passed, the nomination is then moved to the "Nominations" section of the Executive Calendar and is eligible to be called up for consideration on the Senate floor (after lying over for one day or, by unanimous consent, immediately).

Privileged nominations that have been considered under these procedures are to appear in the Nominations section of the Executive Calendar with the designation "Placed on the Calendar pursuant to S.Res. 116, 112th Congress" under the "Reported By" column, along with the date it first appeared there.

Final Consideration Under Regular Procedures

Once a privileged nomination has moved to the Nominations section of the Executive Calendar, there is no expedited process under which the Senate can proceed to consider or vote on it. Instead, these nominations are equally eligible for consideration as any other found on the Nominations section of the Executive Calendar. As a result, even privileged nominations that may have moved quickly through the expedited committee process could face lengthy wait periods before being brought up for consideration by the full Senate. Some privileged nominations never receive a vote on the Senate floor and are returned to the President when the Senate adjourns sine die at the end of the first or second session of a Congress or when it recesses for more than 30 days.5

Referral of a Privileged Nomination to Committee

As noted earlier, pursuant to Section 1(d) of S.Res. 116, any Senator may trigger, on his or her own behalf or the behalf of any identified Senator, that a privileged nomination be referred to its committee of jurisdiction for consideration under normal procedures. Any such request compels the referral of the nomination to committee. Senators do not need to obtain recognition on the floor to make such a request, nor are they required to provide a reason for their request. Instead, a form for this purpose is available at the dais on the Senate floor. A Senator's request is then to be reflected in that day's Congressional Record, and the nomination is to be referred to its committee of jurisdiction. Additional data on requests for the referral of a privileged nomination can be found in Table 1.

Senators may make such requests for a variety of reasons. Senators may have concerns over the qualifications or fitness of an individual to serve in the position to which he or she was nominated. Referring the nomination to committee ensures that it will need the support of a majority of the committee to be reported to the Senate—a higher threshold than under the procedures of S.Res. 116, which require only that the committee's chair affirm that the requested biographical and financial information has been received. Alternatively, a Senator may desire more time for individual meetings with Senators or a public hearing where a nominee's credentials can be extolled, perhaps increasing the chances of a favorable floor vote.

Legislative History on the Creation of Privileged Nominations

S.Res. 116, 112th Congress

The creation of privileged nominations and the special procedures applied to them were part of a larger effort to reform the confirmation process in the Senate during the 112th Congress (2011-2012). On January 5, 2011, Majority Leader Harry Reid and Minority Leader Mitch McConnell engaged in a brief colloquy to discuss the pace of processing nominations in the Senate, noting the increasing volume of Senate-confirmed positions and the need for reform. Connecting the oftentimes laborious confirmation process with difficulty in finding capable nominees, Majority Leader Reid said:

Clearly, all Presidents are entitled to choose well-qualified individuals to serve in their administration. In the vast majority of instances, the individuals nominated by the President are not controversial, but many have faced delays before assuming their positions. These delays mean critical decision-makers are not in place. And, the delays make it harder to find qualified people—many great nominees simply cannot wait around for months as the stress and uncertainty affects their families and careers. We need to do better in the 112th Congress.6

The two leaders agreed to form a bipartisan nominations reform working group, consisting of Senators Chuck Schumer and Lamar Alexander, the chair and ranking minority member of the Committee on Rules and Administration; Senators Joe Lieberman and Susan Collins, the chair and ranking minority member of the Committee on Homeland Security and Governmental Affairs; and the floor leaders themselves. By the end of March, members of the group had introduced two measures: S. 679, the Presidential Appointment Efficiency and Streamlining Act of 2011, and, S.Res. 116, a resolution to provide for expedited Senate consideration of certain nominations subject to advice and consent.7

S.Res. 116 was submitted on March 30, 2011, by Senator Schumer on behalf of himself and 14 other Senators—including all members of the nominations reform working group—and was referred to the Committee on Rules and Administration. The Rules Committee met on May 11 and ordered the resolution reported favorably by voice vote without amendment.8

The Senate took up S.Res. 116 for consideration on June 29. Three amendments to the resolution were proposed and considered, with a package of negotiated and technical changes—referred to as a "managers' amendment"—ultimately being agreed to.

The first amendment, proposed by Senator Tom Coburn, contained language requiring reporting requirements on legislation creating new federal programs. The amendment was not agreed to, 63-34, after failing to achieve a two-thirds threshold for adoption, pursuant to an earlier unanimous consent agreement.9 A second amendment, proposed by Senator Tom Harkin on behalf of Senator Tom Udall, would have amended Senate Rule XXII to establish a majority-vote threshold for invoking cloture on executive branch nominees.10 This amendment was ruled out of order by the chair. The final amendment, offered by Senator Schumer, included provisions that expanded the positions to be considered as privileged nominations (including several full-time chief financial officers and certain assistant secretaries) and required that future legislation proposing new presidentially appointed positions be accompanied by a justification report. The amendment was adopted by unanimous consent.

The Senate agreed to S.Res. 116, as amended, by a vote of 89-8, on June 29, 2011.

Terrorism Risk Insurance Program Reauthorization Act of 2015

H.R. 26, the Terrorism Risk Insurance Program Reauthorization Act of 2015,11 during the 114th Congress (2015-2016), created a new 13-member Board of Directors for the National Association of Registered Agents and Brokers and designated these positions as privileged nominations established by S.Res. 116 (112th Congress).12 To date, this legislation marks the first and only expansion of the privileged nominations category.

The language establishing these new privileged nominations first appeared in the 113th Congress (2013-2014) with the introduction of S. 534, the National Association of Registered Agents and Brokers Reform Act of 2013. The legislative history of S. 534 offers no additional comment on the designating of these 13 positions as privileged nominations. Nonetheless, these positions fit the general profile of the type of nominations for which expedited consideration was designed (e.g., part-time boards and commissions).

Privileged Nominations Referred to Committee

The Senate has considered 467 privileged nominations since S.Res. 116 was agreed to on June 29, 2011. Of those 467, 22 (4.7%) have been referred to committee at the request of a Senator. This rate of referral suggests that Senators are generally deferential to the expedited committee consideration of privileged nominations. Table 1 provides data on these 22 instancesof requested referrals. Each entry contains identifying information about the nomination, including the Congress when the nomination was submitted, the name of the nominee, the position to which he or she was nominated, and the final disposition of the nomination by the Senate. Table entries also note the committee of jurisdiction for each nomination and a column indicating whether the Senator requesting referral was a member and/or leader of that committee at the time he or she made the request.

As previously discussed, under the provisions of S.Res. 116, any Senator has the right to request that a privileged nomination be referred to its committee of jurisdiction. The vast majority of these requests have been by a Senator on the nomination's committee of jurisdiction. Of the 22 instances where a privileged nomination has been referred, 20 have been made by a Senator from the committee of jurisdiction. Furthermore, 14 of those 20 requests were made by either the chair or ranking member of the committee of jurisdiction.

a. As of the end of the first session of the 116th Congress, Edgar's nomination remains on the Executive Calendar in "status quo" pursuant to a unanimous consent agreement on December 19, 2019. Congressional Record, daily edition, vol. 165 (December 19, 2019), pp. S7238-S7239.

b. Under the provisions of Senate Rule XXXI, paragraph 6, of the Standing Rules of the Senate.

c. The request that Charles P. Blahous III's nominations be referred to committee was made by one Senator who served on the committee of jurisdiction and two who did not.

A "session day" is any calendar day on which the Senate meets, including days that the Senate meets in pro forma session. The day on which "requested information received" from the nominee is recorded in the Executive Calendaris considered day 1 of the 10-session-day count.

In his opening statement submitted for the record, Senator Tom Udall noted his intention to offer several amendments to S.Res. 116 during markup but withdrew them to expedite the committee process. Senator Udall would later offer an amendment during floor consideration of the resolution. U.S. Congress, Senate Committee on Rules and Administration, Compilation of Hearings and Markups, 112th Cong., 1st sess., May 11, 2011, S.Hrg. 112-770 (Washington: GPO, 2012), p. 14.

Senator Coburn had offered an identical amendment to S. 679 during floor consideration a week earlier. The unanimous consent agreement withdrew Senator Coburn's amendment from consideration at that time, instead allowing it to be offered during consideration of S.Res. 116 and providing one hour of debate equally divided between Senator Coburn and the majority leader or their designees, in addition to requiring the two-thirds voting threshold.